Mrs N M K Brake (1) and Mr A Y Brake (2) v Axnoller Events Ltd and 3 others — 2020

This judgment concerned only the Claimants' application for costs arising from the case management hearing on 9 July 2020, at which the Respondents had applied for a stay of the employment tribunal proceedings pending related High Court litigation. Employment Judge Housego had refused the stay by order sent on 13 July 2020. The Claimants then sought costs in relation to that application, arguing that it had been pursued unreasonably and had no reasonable prospect of success.

The tribunal set out the relevant costs provisions in Employment Tribunals Rule 76 and the circumstances in which a costs order may be made, including where a party has acted vexatiously, abusively, disruptively or otherwise unreasonably, or where a claim or response had no reasonable prospect of success. It recorded the Claimants' case that the stay application had been a device to force them into a forum where costs usually follow the event, and their position that there was no practical reason for a stay.

The tribunal declined to make a costs order. It held that the employment tribunal is not a costs-follow-the-event jurisdiction and that it is legitimate for a party to seek to litigate matters in one forum rather than another where the outcome of one set of proceedings may affect another. It also noted the breadth of the wider litigation between the parties and said it would be unrealistic to penalise one side for this application as part of that wider contest.

The tribunal expressly said it made no finding of fact that the Respondents had acted in a way that engaged Rule 76. It further said that, even if Rule 76 were engaged, it would not exercise the discretion under that rule to make a costs order in favour of the Claimants. The Claimants' costs application was therefore dismissed.